Chicago Personal Injury Lawyer Blawg

September 4, 2008

How to Prepare for the Chicago Winter: New Studies Show Flu Vaccine May Be Ineffective For Elderly

Every fall my now 93 year-old mom calls and reminds me that with the Chicago winter on its way, it is imperative that I get my annual flu shot. Being an obedient son, I comply by hustling over to the nearest clinic to get that shot. And of course, my mom also gets her prescribed flu shot and has thankfully avoided the dreaded flu during the winter season.

But now immunologists are coming forward with new studies reporting that the vaccine doesn’t work very well for those over 70. Yet the over 70 age bracket accounts for 75% of all the flu deaths.

When explaining the drastic shift in these new studies, researchers pointed to the faulty logic used in prior studies. Instead of evaluating the effectiveness of the vaccine against the flu, the studies instead seemed to support evidence of who received the shot and who didn’t.

People who are health conscious, like my mom, are more likely to get an annual flu shot. Whereas people that are frail and have trouble taking care of themselves are less likely to leave home to get the vaccine. And this second group is at greater risk of death, with or without the flu shot.

September 2, 2008

Prisoner’s Medical Malpractice Claim Allowed to Go Forward By Chicago’s Seventh Circuit Court of Appeals: Reverses District Court Ruling

by Robert Kreisman

Chicago’s 7th Circuit Court of Appeals reversed a ruling that had dismissed a prisoner’s medical malpractice claim against his prison. Inmate Diego Gil brought a suit against the Federal Correctional Institution of Oxford, Wisconsin, claiming negligence and medical malpractice under the Federal Torts Claim Act, along with a violation of his Eighth Amendment rights. Diego Gil v. James Reed, et al., No. 06-1414.

In March 1998 Gil underwent surgical repair of a rectal prolapse. When his condition worsened after the unsuccessful surgery Gil sought medical aid from a physician’s assistant at his prison. But the physician assistant refused to give Gil medical attention, stating he was abusing the facility’s emergency care.

This refusal of care continued for the next year and a half. During that time Gil developed an infection near the surgical site and was denied antibiotics. Gil’s requests to see a specialist were continually denied. When Gil was finally allowed to see a colorectal surgeon he was immediately taken to surgery for rectal prolapse. After his second operation Gil was prescribed specific pain medications and warned against taking Tylenol III as it could cause constipation that would exacerbate his condition. Yet the prison staff refused to give Gil the prescribed pain medications and instead gave him Tylenol III.

At this point Gil filed suit against several of the prison officials for medical negligence and malpractice. He also alleged that the refusal to follow the surgeon’s instructions amounted to a deliberate indifference to his serious medical needs as a violation under the Eighth Amendment of the Constitution.

August 28, 2008

Blanco v. Baxter Healthcare Corp.: Court Upholds Medical Device Preemption Clause

by Robert Kreisman

A California Appellate Court supported a trial court’s ruling that the Medical Device Amendments (MDA), Title 21 USC §360k(a), preempts any state law imposing safety requirements on manufacturers of a medical device. So even though the medical device did not pass all of the state’s safety requirements, in Blanco v. Baxter Healthcare Corp. the plaintiff’s claim was denied because the medical device in question met all the FDA requirements. As we see again and again, the MDA’s preemption claim is making it increasingly difficult to seek legal recourse for a faulty medical device. Of course, this would hold true for our cases in Chicago and around Illinois.

Claudia Blanco was diagnosed with mitral valve stenosis and needed to have her natural valve replaced with an artificial one. During surgery a bileaflet mitral heart valve manufactured by Baxter-Travenol Laboratories was inserted. A year after Blanco received the valve Baxter suspended marketing of its product due to reports of possible valve failures.

However, Blanco didn’t receive any notice of the valve problems for another five years. And while the notice advised her of the potential problems it did not advise her to have the valve removed or replaced. Less than ten years later Blanco’s artificial valve failed and she was rushed to the hospital for an emergency valve replacement, but died. After her death a representative from Baxter evaluated her valve and determined that the failure was in fact caused by a faulty valve.

But despite the evidence that the product was faulty Blanco’s claim was denied by both the trial and appellate courts. Because the medical device had passed a “rigorous” approval by the FDA it was protected from litigation for product liability. Also, because the device’s warnings were also approved by the FDA a claim cannot be brought for failure to warn.

August 27, 2008

Illinois Appellate Court Upholds Verdict Over Expert Qualifications

by Robert Kreisman

A Cook County jury verdict was entered in favor of the University of Chicago Hospitals in a 2005 trial and was upheld on appeal to the Illinois Appellate Court (Kashief Weathers et al. v. University of Chicago Hospitals, et al., No. 1-061726). In the case, several doctors were accused of causing brain damage to an infant born with his umbilical cord wrapped around his neck. The plaintiff child now suffers from cerebral palsy and severe brain damage.

The baby’s mother brought an Illinois birth injury malpractice claim against University of Chicago Hospital alleging that defendant doctors failed to relieve the trauma caused by his umbilical cord during his birth in October 1988. There were also allegations that the doctors didn’t timely treat the baby’s seizures after his birth.

The plaintiffs’ obstetric expert testified that the defendant doctors deviated from the standard of care by not performing a cesarean section, which would have sped up the delivery. The expert felt that a quick delivery could have changed the child’s outcome because the brain damage likely occurred at some time during labor.

But the defense expert, a pediatric neurologist, disagreed. He felt that a cesarean section would not have made a difference because in his opinion the baby was injured at least one day prior to his birth. So by the time his mother was in labor there was nothing the doctors could have done to alter his outcome.

The trial jury sided with the defense and entered a verdict in favor of the University of Chicago Hospitals. The plaintiff brought the case for appeal on several counts.

August 25, 2008

Illinois Appellate Court Holds School District Accountable For Bus Driver’s Misconduct

by Robert Kreisman

When Misty Green was in kindergarten she was sexually molested by her Illinois school bus driver. The bus driver has since been convicted of child abuse and sent to prison. But now an adult Green seeks compensation from her Illinois school district based on its liability in the abuse (Green v. Carlinville Community Unit School Dist. No. 1).

An Illinois trial court granted the school district’s motion for summary judgment stating that all the counts against the district were reliant on the district’s classification as a “common carrier,” but that the district was not a common carrier. An Illinois Appellate Court agreed that the district was not a common carrier, but that it was still liable for the bus driver’s misconduct.

Under Illinois law a common carrier is a carrier who transports and serves all the public alike and does not have the ability to refuse service to anyone. Whereas a private carrier has no obligation to indiscriminately carry all of the public and instead transports only by special agreement. Both the trial and appellate court found that the school district was not a common carrier because it did not transport all of the public. Rather the district transported only students and only for student-related activities.

But even though the Illinois appellate court agreed that the school district could not be classified as a common carrier it disagreed with the trial’s court ruling- namely, that the district was not liable for the bus driver’s misconduct. Instead the appellate court found that the school district could be held liable.

August 22, 2008

Illinois Court Decides Insurance Company Not Responsible for Covering Workers’ Compensation Claim

by Robert Kreisman

Illinois Appellate Court ruled that Illinois Insurance Guaranty Fund (IIGF) is responsible for paying Illinois workers’ compensation benefits to a worker who was injured on the job (Virginia Surety Co. v. Adjustable Forms, Inc.). This ruling came in spite of IIGF’s claims that the Chicago worker was also covered under Virginia Surety Co.’s policy and therefore it should be paying the Illinois workers’ compensation benefits.

Michael Hadrys, an Adjustable Forms employee, was injured while working on a construction project in Illinois called the River East Project. And as is typical in the construction industry, his insurance was an owner controlled insurance program (OCIP) meaning that it was covered through the owner of the job and not his direct employer. The OCIP was being covered by Reliance Insurance Co., who have since folded, and that’s when things get complicated.

Typically, when an insurance company folds all its claims are handled by the Illinois Insurance Guaranty Fund (IIGF), provided that there is no other insurance company involved to take over the claim. However, in this case because Hadrys’s employer, Adjustable Forms, actually also had its own insurance through a different provider, Virginia Surety Co. Therefore the IIGF argued that it was not responsible for paying Hadrys’s workers’ compensation claim, but that Virginia Surety Co. was. Yet the Illinois Appellate Court disagreed.

The case revolved around whether or not Virginia Surety Co. was actually responsible for insuring Hadrys at the time of his Illinois construction site injury. The IIGF said that it was because it was an alternate form of insurance for Hadrys’s employer. Virginia Surety Co. said that it was not because Adjustable Forms insurance policy stated that it would cover injured employees unless they had other insurance.

August 20, 2008

U.S. Supreme Court Receives Unsolicited Drug Safety Advice From Top Doctors Questioning the FDA’s Ability to Protect Patients

by Robert Kreisman

The United States Supreme Court is expected to hear the case of Wyeth v. Levine this November which could have far reaching implications as to pharmaceutical litigation cases against drug companies, including those in Illinois and the Chicago area. The legal advice comes from top doctors and editors of the New England Journal of Medicine who have submitted a friend-of-the-court brief. The doctors state that the Food and Drug Administration (FDA) “is in no position” to guarantee drug safety. The doctors went on to to say that lawsuits can serve as “a vital deterrent” and protect consumers if drug companies don’t disclose risks.

The underlying case is about Diana Levine, a Vermont guitarist, who lost her right arm below the elbow after being injected with the drug Phenergen, a medicine used mostly for nausea. She sued the drug manufacturer, Wyeth, contending that the drug company had a duty to warn consumers that injections, like the one she experienced, could have devastating consequences. The state courts in Vermont agreed with Ms. Levine in awarding her nearly $7 million.

But Wyeth appealed stating that it was protected from such lawsuits. It argued that the FDA’s judgment could not in effect be overruled by a state court. FDA scientists had weighed the risk and benefits of Phenergan in approving the drug’s safety literature as a guide for doctors. The FDA was aware of the risks associated with injecting some forms of Phenergan, but the label did not specifically warn about the technique used for this patient.

It has been commented before that the FDA has been the “gold standard” in drug evaluation. The New England Journal of Medicine editors warned the justices to be skeptical in taking such a view now.

August 18, 2008

Illinois Appellate Court Denies Insurance Coverage To Individual, But Company Covered

by Robert Kreisman

A Kane County, Illinois trial court’s decision was reversed in a property damage case involving a car and two horses in what could be described as a two-horse crash. The issue in the case turned out not to be the horses, but the property damage to the car.

State Farm insured the vehicle that was damaged and filed suit against Pat Santucci for property damage only. Santucci was part owner of P.S. Coyote, a corporation that operated out of Santucci’s Illinois property, where he also individually owned the horses, outbuildings and barn involved in the accident. Statewide covered P.S. Coyote and Santucci under a commercial general liability policy.

Statewide agreed to represent Santucci even though he was insured only as related to his business. Statewide even issued a letter to Santucci stating that they reserved no rights and that they would insure Santucci regardless. However, that same day Statewide was declared insolvent. Santucci’s claim would now be handled by the Illinois Guaranty Insurance Fund.

The fund is created by the State of Illinois and is in place to take over some of the insurance claims for liquidated insurance companies. Unlike Statewide Insurance, when the fund took over Santucci’s case it did so with a reservation of rights. That is where Santucci’s claim gets complicated.

August 15, 2008

Chicago Metra Worker Denied FELA Recovery For Injuries Due to Lack Of Notice

by Robert Kreisman

Chicago area Metra worker Leonard Brzinski was denied recovery for injuries he suffered after falling into a sinkhole while working. Under the Federal Employers’ Liability Act (FELA), a train company employee can bring suit for injuries suffered on the job due to the employer’s negligence.

Brzinski arrived at work in Orland Park, Illinois, to investigate an accident. He was walking along the service road that ran parallel to the railroad tracks for the purpose of taking photographs. While he was walking, the ground gave way and Mr. Brzinski stepped into an 18-inch sinkhole with his left foot and injured himself.

Brzinski filed suit against Metra seeking recovery for his injuries. The defendant, Metra, filed a motion for summary judgment stating (1) Leonard was not one of the employees statutorily allowed to recover under FELA and (2) that Metra had no actual or constructive notice of the sinkhole that caused the injury.

The trial court granted Metra’s motion on the second argument- that Leonard failed to establish that Metra was or should have been on notice of the sinkhole defect. Therefore Metra was not responsible for Brzinski’s injuries.

Brzinski appealed to the Illinois Appellate Court, who affirmed the decision of the trial court. The appeals court further stated that their decision was partly because of the consequences that would occur if they did side with the plaintiff despite his lack of proof. Namely, that every railroad would be liable for damages to an employee who was injured while working for them whether it was due to the railroad’s negligence or not. The court did not feel this was the intention of the FELA statute.

August 13, 2008

Injured at Work? Illinois Workers Could Have a Product Liability Case

by Robert Kreisman

Consider the following scenario. You work at a Chicago manufacturing factory. One day the machine you operate becomes jammed. In order to try to remove the jammed material you remove the machine’s guard and place your hand inside. But as you do this the machine starts up and crushes your hand. You are now permanently disabled and unable to do your job. What are your legal options?
Because of Illinois worker’s compensation law you are limited to recover against your employer in the Illinois Industrial Commission and cannot bring a separate civil lawsuit directly against your employer. But if your injury at work involved a machine or product then you may be able to recover damages from the manufacturer in a product liability claim brought as a separate civil suit.

The most common product liability claim from work-related injuries is due to the product’s lack of safety features, such as a guard or an automatic shut-off that is activated when the guard was removed, or a release lever that kills the power instantly. When a product fails to include a reasonable safety feature that makes it unduly dangerous to its user then the manufacturer can be held liable for any injuries sustained while operating the machine.

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